Rachel Browning’s Legal Blog

            A few weeks ago, I wrote about filing visa applications in the H-1B specialty occupation category, explaining the criteria for employment, the quota (numerical limit of 65,000 visas), and the likelihood that this quota would be reached by the end of the first day it opens, or April 1, 2009.  While the realities of these numerical limitations cause frustration to many employers, particularly those in the engineering and information technology sectors, others could actually find themselves exempt from the quota, and able to file applications for new H-1B beneficiaries.

            An H-1B applicant can avoid the quota if she/he falls into a category of exempt employment. If the individual has an offer of employment at “an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization” he/she will not be counted within the cap. 

            A June 6, 2006, U.S. Citizenship and Immigration Services (USCIS) memo clarified the scope of this provision and expanded the categories of H-1B workers who are eligible for cap exemptions by being employed at institutions of higher education.  The memo also restricted the same exemption by narrowing the definition of “qualifying related nonprofit and research organizations” eligible to claim the exemption.

            The H-1B count exempts from the cap a beneficiary who is employed at an institution of higher education or an affiliated nonprofit entity.  The USCIS accepts the definition of “institution of higher education” as set forth in section 101(a) of the Higher Education Act of 1965 in determining whether an institution qualifies for the exemption.  As for the definition of “affiliated non-profit entity,” the USCIS has incorporated the definitions codified in the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA).  It defines the scope of the exemption as follows:

            An affiliated or related nonprofit entity:  A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

       Petitioners should therefore be prepared to submit documentary evidence that such a relationship exists between their organization and the institution of higher education according to this criteria.  This can include memoranda of understanding, corporate documents, or other evidence of the qualifying affiliation.  As I’ve written previously, some public school districts may be exempt from the numerical limitations when hiring employees under the H-1B program, if they are “affiliated” with an institute of higher education – as in through an alternative certification program which has an official agreement with them by which they recruit new teachers. 

“Employed (or has received an offer of employment) at“

            In certain In certain situations petitioners that are not themselves a qualifying (exempt) institution may nevertheless claim this exemption if the beneficiary will perform all or a portion of the job duties “at” a qualifying institution.  Petitioners filing under these circumstances are known as “third-party petitioners.”  In determining whether the employer meets the exemption criteria, the USCIS looks at the nature of the job duties, the place of employment, and the relation of the third-party petitioner to the qualifying institution to decide if the petitioner merits the exemption. Basically the USCIS weighs whether the employment of the beneficiary directly and predominantly furthers the essential purposes of the qualifying institution, such that the exemption is warranted.Id.  To establish that the duties “directly and predominantly” further the essential purpose of the qualifying institution, the third-party petitioner must show that there is a logical nexus between the work performed by the beneficiary and the normal, primary, or essential work performed by the qualifying institution.  The third-party petitioner has the burden of proof to establish that the majority of the beneficiary’s job duties fulfill this requirement.  The petitioner should be prepared to submit as supporting evidence, a list of the beneficiary’s job duties, the percentages of time allocated to each duty and a description as to how these duties correspond to the mission of the qualifying organization. The third-party petitioner should also submit a contract with the qualifying institution that outlines the terms and conditions of their relationship, and how the beneficiary’s employment with the qualifying institution relates to its purpose and mission.

            For more information on the H-1B Visa category, exempt organizations, employer attestations, worker extensions and/or adjustments of status, contact the immigration attorneys of Smith & Garg, P.C. in Houston-Westchase or The Woodlands, Texas.  

            One of the more frustrating experiences for foreign nationals seeking to enter the U.S. can be consular processing – the application for a visa to enter the U.S. at the U.S. Consulate of the alien’s home country.  While the initial determination of an applicant’s eligibility for a visa lies with the Department of Homeland Security (specifically, the U.S. Citizenship and Immigration Service or USCIS), the U.S. Department of State – the U.S. Consulate of the alien’s home country – has the sole authority to issue the visa which allows the alien to proceed to the U.S.  And this authority includes the ability to review an alien’s application and supporting documentation and determine whether they are eligible, and then admissible to the U.S.  In other words, just because an alien’s petition (I-130, I-129, I-140, etc.) has been approved by the USCIS, does not guarantee that he or she will be able to obtain the visa abroad, if the consular officer interviewing the applicant and analyzing his/her application is not convinced of his/her admissibility.  The process is often unpredictable because each consulate has its own procedures and rules to be followed for processing visa applications; and because these consulates are overseas, an alien’s attorney (most often located in the U.S.) is usually not present when the visa interview is conducted and has limited accessibility to the alien and consular officer deciding the case.  Still, a well-prepared application and the applicant’s thorough understanding of the visa requirements and consular procedures can help secure the alien’s entry to the U.S.  Here are some things to keep in mind:

·         Each visa requires different supporting documentation that must be presented to the consular officer.  For example, applicants for an F-1 Student Visa must not only have proof of their admission to a qualifying institution and a corresponding I-20; they must also have proof of sufficient “ties” to their home country, such as property, financial commitments or family, to show that they have no intention of “abandoning” their home country in favor of a permanent stay in the U.S. 

·         Applicants for employment-based petitions – H-1B, L-1A, L-1B, etc. – must show documentation supporting the existence of a bona fide job opportunity, proof of the employing company’s viability, and in the case of H-1B occupations, proof that the job is one that requires at least a Bachelor’s degree or its foreign equivalent in the specific field of employment, and that the alien has such a degree.

·         While documentation is important, the consular officer is most concerned with the how the alien presents his or her case at the interview.  If an attorney has assisted in the preparation of your case, make sure you are aware of everything that has been submitted, the reasons for their submission, and be prepared to explain exactly why you are seeking entry to the U.S. 

·         Since the events of 9/11, the visa process has become subject to an increased level of delay; what the State Department calls “administrative review.”  Reasons for this type of delay can include:  an applicant has a criminal history (even minor crimes); the applicant has a name and date of birth that closely resemble someone who is a known criminal or on the government’s terror watch list; the applicant is from a country designated as a “state sponsor of terror;” or the consular believes that the applicant will be exposed to sensitive, and potentially dangerous technology during his/her visit to the U.S.  Applicants subject to such delay should remain calm and patient, and be prepared to submit additional evidence to the officer to establish eligibility and/or admissibility.

            The Bottom Line: even applications which seem routine can become complicated if certain information is left out, or if the applicant does not understand the law, the procedures, and the specific eligibility requirements.  Those interested in seeking entry into the U.S. are advised to seek the assistance and advice of an experienced immigration attorney knowledgeable in both USCIS and Consular processes.  The experienced immigration attorneys of Smith & Garg, in The Woodlands, Spring, Conroe and Houston, Texas, can assist you in determining your rights and responsibilities, whether you are an employer or employee.  Contact us today for a consultation. 

            The Employment and Training Administration (ETA) of the Department of Labor (DOL) its regulations to initiate new procedures for the issuance of labor certifications to employers sponsoring H-2B non-immigrants entering to perform temporary nonagricultural labor. The new procedures cover the enforcement of employer compliance and certain attestations made by those employers. Specifically, the new rule revamps (and simplifies) the application process by centralizing processing and by allowing employers to conduct pre-filing recruitment of U.S. workers. In addition, the rule improves the H-2B program by introducing post-adjudication audits and additional procedures for penalizing employers who fail to comply with program requirements.  It also makes technical changes to the regulations relating to both the H-1B program and the permanent labor certification program to reflect operational changes stemming from this regulation.  

H-2B Visa Program – Background and Employer Responsibilities

            Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (INA) defines an H-2B worker as a “nonimmigrant admitted to the U.S. on a temporary basis to perform temporary nonagricultural labor or services.”  The DOL’s role in the H-2B visa program stems from its obligation, outlined in DHS regulations, to certify, upon application by a U.S. employer requesting admission of H-2B workers, that there are not enough able and qualified U.S. workers available for the position sought to be filled and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers.  DHS regulations provide that an employer may not file a petition with DHS for an H-2B temporary worker unless it has received a labor certification from the DOL, or received a notice that a certification cannot be issued. 

            Under current procedures, the employer must demonstrate that its need for the services or labor is temporary as defined by one of four regulatory standards: (1) A one-time occurrence; (2) a seasonal need; (3) a peak-load need; or (4) an intermittent need.  The employer must currently submit to the state workforce agency a detailed statement of temporary need and supporting documentation with the application for H-2B labor certification. Such documentation must provide a description of the employer’s business activities and schedule of operations throughout the year, explain why the job opportunity and the number of workers requested reflects its temporary need, and demonstrate how the employer’s need meets one of these four regulatory standards. The employer must also establish that the temporary position is full-time and that the period of need is generally one year or less, consistent with the standard under DHS regulations.  Additionally, the employer must recruit from the U.S. labor market to determine if a qualified U.S. worker is available for the position.

            Employers and employees alike, who may be uncertain as to what these rules mean to and require of them, should consult an immigration attorney knowledgeable about employment-based immigration.  The experienced immigration attorneys of Smith & Garg, in The Woodlands, Spring, Conroe and Houston, Texas, can assist you in determining your rights and responsibilities, whether you are an employer or employee.  Contact us today for a consultation.   

The Department of Justice is publishing its final rule to amend the immigration regulations regarding “voluntary departure.”  This rule adopts a previously proposed rule under which a grant of voluntary departure is automatically withdrawn when a motion to reopen or reconsider is filed with the immigration judge or the Board of Immigration Appeals (BIA), or a petition for review is filed in federal court.

Background

The Immigration and Nationality Act (INA) allows certain aliens in removal proceedings the option of accepting “voluntary departure” as an alternative to formal deportation and entry of a formal removal order.  This provision of the INA offers aliens the benefit of being exempt from the ordinary bars to relief in return for their quick departure from the U.S. at no cost to the government.  When choosing to seek voluntary departure, the alien agrees to take the benefits and burdens of the INA together.  In order to obtain voluntary departure at the conclusion of removal proceedings, an alien must establish to the immigration judge by “clear and convincing evidence” that he or she is both willing and able to depart voluntarily.  

The INA specifies that an individual who has been granted voluntary departure has a period of no more than 60 days after the issuance of the order in which to depart the U.S.  Certain penalties apply to aliens who fail to depart within the statutory period allowed.  In addition, the INA provides that an individual has up to 90 days to file a motion to reopen or 30 days to file a motion to reconsider after the entry of a final order issued in removal proceedings.  In the past, the regulations have dictated that an alien’s departure from the U.S. – including voluntary departure – effectively withdraws a motion to reopen or reconsider.  On the other hand, aliens who had accepted voluntary departure and filed a motion to reopen or reconsider ran the risk of overstaying their departure period and facing penalties, if they remained in the U.S. for the pendency and disposition of their motion. 

The nature of this conflict led to a split among circuit courts regarding the relationship between voluntary departure and motions to reopen or reconsider.  While four courts of appeals held that the alien’s filing of a motion to reopen within the time allowed for voluntary departure automatically “tolled” the voluntary departure period (allowing the alien to remain in the U.S. until after the motion had been adjudicated; three other courts of appeals held that the filing of a motion to reopen did not toll the period allowed for voluntary departure. 

The New Rule

The new rule addresses this split among the courts by amending the voluntary departure regulations to state that an alien’s grant of voluntary departure automatically terminates upon the filing of a motion to reopen or reconsider.  The rule stems from the idea that voluntary departure is an agreed upon exchange of benefits between the alien and the Government.  Accordingly, when an alien decides to challenge a final order of removal through a motion to reopen or petition for review, he or she forfeits the benefits derived by being allowed to leave the country voluntarily without retaining the usual penalties associated with a final order of deportation.  The final rule does not adopt the “automatic tolling” approach some circuit courts had taken, explaining that such a provision would be inconsistent with the statutory concept of voluntary departure.  The new rule also allows immigration judges to set a specific dollar amount (not to exceed $3000) as a civil monetary penalty, should the alien fail to depart during the specified time period.

The rule offers some clarity in an area of immigration law in which there has obviously been confusion and inconsistency. Individuals in detention and/or facing removal from this country should consult with an experienced immigration attorney about the details of their situation, to find out the most beneficial form of relief available to them.  Contact the Immigration Attorneys of Smith & Garg in Houston, Westchase, Spring or The Woodlands, Texas for more information.

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is implementing changes to the H-2A regulations that will simplify the hiring process of temporary and seasonal agricultural workers and facilitate the H-2A process for employers by removing certain limitations, thereby hopefully encouraging lawful employment of available foreign workers.  These changes stem from the commitment made by The Bush Administration in August 2007, after Congress failed to pass comprehensive immigration reform, to presumably deal with some of these labor shortages and challenges.  The final rule supplements the extensive reforms of the H-2A program included in the Department of Labor’s new regulations.

U.S. employers may file an H-2A petition with USCIS if they have a shortage of available U.S. workers to fill temporary or seasonal agricultural jobs. Once the petition is approved, the employers can hire foreign workers to fill those jobs for a limited period of time. The final rule includes mechanisms to enhance the integrity of the program, increase protection of U.S. workers, and protect H-2A workers from employer and recruiter abuse.

The “Final Rule” includes the following new strategies:

•      Relaxing the current limitations on H-2A employers to petition for multiple, unnamed agricultural workers;

•      Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may remain in the country following the expiration of his or her temporary H-2A stay;

•      Reducing from six months to three months the time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2A status;

•      Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, (as opposed to having to wait for an approval), provided the new employer is participating in USCIS’ E-Verify Program.

•      Prohibiting H-2A employers and recruiters from imposing fees on prospective H-2A workers as a condition of employment;

•      Requiring an approved temporary labor certification in connection with all H-2A petitions;

•      Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and

•      Permitting the approval of H-2A petitions only for nationals of certain countries designated as important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with this Final Rule includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2A program if such participation is in the U.S. interest.

·         This rule will also establish a land-border exit system pilot program requiring H-2A workers admitted through a port of entry participating in the pilot program to also depart through a participating port and to present designated biographic and/or biometric information upon departure.

These reforms could serve as an important step in improving what many on both sides of the immigration debate consider is a broken and out-dated system.  Of course, it’s one thing to have new-and-improved regulations; but quite another to enforce them.  Furthermore, real and comprehensive reform will require not just new rules and regulations, but also vigilance in their compliance and enforcement, on the part of workers, employers, our elected officials, and the general public.  Employers and employees alike, who may be uncertain as to what these rules mean to and require of them, should consult an immigration attorney knowledgeable about employment-based immigration.  The experienced immigration attorneys of Smith & Garg, in The Woodlands, Spring, Conroe and Houston, Texas, can assist you in determining your rights and responsibilities, whether you are an employer or employee.  Contact us today for a consultation.